Clifford v. Cabiness

31 Ky. 384, 1 Dana 384, 1833 Ky. LEXIS 98

• Court: Court of Appeals of Kentucky
• Decided: October 16, 1833
• Status: Published

Opinion

Chief Justice Robertson

delivered the Opinion of the Court.

On motion, Cabiness recovered a judgment against Clifford, as constable, and against Dennis and Hay, bis sureties, for a failure to return, within twenty days after the return day, a fieri facias which had been issued in favor of Cabiness against Bell, by Isaac Bard, a justice of the peace, upon a judgment rendered by John Campbell, another magistrate; and which execution was made returnable to the office of Bard.

It appears that, after the execution had been delivered to the constable, and before the return day, the county court made an order, reciting that.Bard had ceased to be a justice of the, peace, and directing the clerk to deliver his official books and papers to Campbell; and it appears also, that the execution in favor of Cabiness against Bell, was not returned to Campbell’s office until about six months after the return day.

On this state of case, the circuit court pronounced judgment against the constable and his sureties, for the amount of the execution and legal interest, and ten per cent, damages. And this writ of error is brought to reverse that judgment.

As the judgment against Bell was rendered by Campbell, (who seems to have continued in office, and to have retained his records until after the execution was issued,) Bard had "no authority to issue the execution upon it ; and consequently, the constable was not bound to execute, or return, it to Bard or to Campbell. And moreover, had the constable been.liable for not returning the execution, he was liable, on motion, for only the amount clue at the time of his default, and ten per cent, damages on that amount. He was not responsible for interest also. Trover vs. Sharp, 4 J. J. Mar. 79.

Wherefore, the judgment is reversed, and the cause-remanded.